The Law Practice Management Section of the American Bar Association awards the James I Keane Memorial Award in Excellence in eLawyering, annually at the ABA TechShow in Chicago. Nominations are now open for the Award to be in March, 2010. Candidates can self-nominate. Full details and requirements of this award can be found here. Do you want to nominate a colleague or yourself, there is an on-line nomination form that can be found here.

A brief summary of the James I. Keane Award criteria:
• The project or law firm must demonstrate the use of the Internet to deliver legal services.
• It must be unique. It should be an on-line legal service that has never been done before, or not quite this way before.
• Absence of precedent – Never been done or done quite this way before.
• There should be some measurable outcome that would indicate that the innovation is accomplishing what it was intended to do.
• Action must have taken place no more than three years prior to this entry, and the legal service must be operating for at least one year prior to submission of the Application.
• Additional consideration will be given to projects that focus on the delivery of legal services to individuals of moderate means.
• The nomination should describe how the service was developed, how it is managed, and how it has been evaluated.
• The nomination should describe how the service can be replicated by other law firms in terms of development costs, required technology, people requirements, and ongoing maintenance costs.

Most iPhone and iPod Touch users will not be affected. That’s because this exploit attacks jailbroken iPhone and iPod Touch devices only. Jailbreaking, which has been around for about two years, is a hack that enables iPhone and iPod Touch users to download applications unavailable through Apple’s App Store.  That means most of you who read my blog are safe. But if you have a seriously nerdy teenager at home who is addicted to their iPhone or iPod, there is a good chance they have installed some bootleg software, thereby leaving them exposed to this threat.

This worm uses command-and-control like a traditional PC botnet. It configures two startup scripts, one to execute the worm on boot-up, and the other to create a connection to a Lithuanian server (HTTP) to upload stolen data and cede control to the bot master.

This virus can spread from one device to another. When an infected device is hooked up to a WiFi connection, the worm can spread more quickly to more IP addresses than on a typical 3G connection.

In August, 2007 I wrote a blog post entitled “The iPhone is All the Rage — But Is It a Good Tool for Attorneys?” in which I questioned the premature use of this device in a law firm environment due to security issues. According to Sophos, my prediction is very true. They write:

It does not appear that iPhones are able to report back any sort of status information, so there is no way to securely use them in an enterprise environment. If an infected phone is also connected to your MS Exchange, WiFi, or VPN environment, all of your confidential data could be at risk. . . . This further demonstrates that iPhones are not ready for the business environment.

The recommended method to remove this malware from an iPhone is to restore the Apple factory firmware using iTunes.

To be fair, and scare the heck out of the rest of the Smartphone world, BlackBerry is also susceptible to malicious infection as well. Read this blog post on Sophos.

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♫ Every day I wander in negative disposition,
as I’m bombarded by superlatives,
realizing very well that I am not alone,
introverted i look to tomorrow for salvation,
but I’m thinking altruistically,
and a wave of overwhelming doubt
turns me to stone

and I guess it struck a nerve…♫

Lyrics and music by Greg Graffin, recorded by Bad Religion.

A fellow blogger Henrik Edberg has written a great piece on blogging entitled: 9 Life Lessons I Have Learned from Blogging

Not only is the article well done, he uses quotes to start his articles (well ok, they are not musical lyric quotes, but they are quotes none-the-less). Henrik is talking about 9 lessons about life that he has learned from blogging.

So many people seem to be blogging in an attempt to get others to buy things – advice, products etc. To me that isn’t the reason why you blog – you try to make people’s lives a little bit better and in turn, hopefully you will read something, somewhere that does the same for you. We are all stronger if we help each other. Henrik has his own way of stating this:

“If you are trying to get other people to always give you more value than you give them – in real life or on your blog – then you suck the positive feelings out of the place. And people will become less and less likely to want to hang around and interact with you.”

Henrik’s post struck a nerve for me today. Great stuff Henrik – keep up the good work!

Hat tip to fellow PMA Jim Calloway for sending me in Henrik’s direction!

The eLawyering Taskforce of the ABA Law Practice Management Section has a draft proposed set of guidelines for lawyers establishing virtual offices on the internet: Suggested Minimum Requirements for Law Firms Delivering Legal Services Online. The guidelines should prove useful for lawyers who wish to operate a web-based office, whether the lawyer has a traditional physical office and wants to expand law services state-wide on the web– the ultimate second office– or wants to establish the only office as a web-based office. I say state-wide, because you need to be very clear on the world wide web where you are authorized to practice law. Otherwise, you may find yourself in trouble with another state’s bar disciplinary board for unauthorized practice of law. If you are a member of the Oregon State Bar – only – then you must only serve clients who are Oregon residents or who have a matter within Oregon. Besides the Unauthorized Practice of Law issue, other critical ethical issues such as client confidentiality, the formal establishment of the lawyer/client relations, scope of representation, written fee agreements, advertising, legal fees, direct contact with prospective clients, and conflicts of interest issues needing to be considered are addressed in this draft Suggested Minimum Requirements for Law Firms Delivering Legal Services Online.

What is very important: the structure of the website of the law firm that is offering legal services online should require a secure client web space that is accessible only with a user name and secure password – much like the security of your online banking forum.

This is the new world of lawyering. Lawyers will need to address the best practices for their websites and then some. In 2003, the ABA approved the Best Practice Guidelines for Legal Information Web Site Providers. They are very helpful to review before creating your law firms website or checking to see if your existing website could be improved. A virtual office on the web should be very cautious. Sample disclaimers that make UPL limitations clear are being worked on by the eLawyering Task Force. The PLF provides sample disclaimers for e-mail and websites on the PLF website at www.osbplf.org under Loss Prevention > Practice Aids and Forms > Technology.

Last year, Stephanie Kimbro won the 2009 ABA Law Practice Management Sections James I. Keene Award for Excellence in eLawyering. Read about this Stephanie’s innovative firm that is a mouseclick away on the internet in the Law Practice Magazine article, Innovative Solo E-Practice Receives 2009 Keane Award.

It is important that even early trailblazers are diligent in making sure that their online practice meets best practices for the the delivery of legal services online to clients. The eLawyering Task Force with input from bar leaders across the U.S. and Canada will hopefully have a best practices document that the American Bar Association House of Delegates will adopt in the future. Guidelines so approved will give lawyers confidence that they are addressing essential issues, crossing all t’s and dotting all i’s.

If you are on LinkedIn, there is an ELawyering discussion group that you can join. If you are a member of the ABA, you can sign up to join the eLawyering email discussion list. I am a member of the eLawyering Taskforce and will be happy to forward any comments or input regarding this proposed Suggested Minimum Requirements for Law Firms Delivering Legal Services Online.

Welcome to the new world of lawyering where lawyer deliver legal services directly to clients from secure websites. Will it impact your firm and your clients? Very likely.

We wrote The Busy Lawyer’s Guide to Success to be a compact and practical idea book to help lawyers efficiently and effectively improve their practices without wading through mountains of magazine articles or pouring through books to get to the useful essence of the author’s wisdom. With over 700 tips and ideas organized into 140 pages, the book will more than pay for itself for lawyers who implement just one or two practical tips.

Harrisburg, PA attorney Jan Matthew Tamanini astutely says “It’s no substitute for paid services, but its utility in two areas is great: checking cases cited in opinions or briefs of opposing counsel, and looking into other states’ caselaw as analogies to areas that don’t have much PA law.”

Google Scholar offers more than 80 years of US federal caselaw (including tax and bankruptcy courts) and over 50 years of state caselaw. Check it out.

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♫ Dust in the Wind
All we are is dust in the wind…♫

Lyrics and Music by Kerry Livgren, recorded by Kansas.

I wish to say thanks to the Lawyers Weekly and Valerie Mutton for including me along with Jennifer Gray, Technology Integration Specialist at McInnes, Cooper in Halifax and Lawrence Pascoe, a lawyer in Ottawa, in a great article entitled: Technophile lawyers leaving luddites in the dust.

Valerie listened when we talked about the transformational power of technology:

“Ten years from now, Bilinsky says, there will still be traditional firms that use technology in a limited fashion, but there will be many others who will be the leaders. He says that now, with the introduction of the interjurisdictional practice protocol, it’s possible to build a practice that is national in scope even if you live in a small town or practice a niche area that might not be lucrative locally. You can use technology to market yourself and cast a wide net for your client base. Lawyers can also do innovative things like having a “virtual” law practice, with associates who are not physically present in the same city, let alone the same office — allowing you to hire that promising young associate, even if she doesn’t want to relocate.”

You can read the rest of the article here.

It is indeed refreshing that when we speak about the positive effects of technology on lawyers, it isn’t just dust in the wind…

Some of the risks depend on whether the employee is properly categorized or not. A number of years ago an internal IRS enforcement memo issued instructions to target law firms who categorized attorneys as Independent Contractors. The IRS “red flag” was easy enough to spot because a firm has to submit a 1099 at year end to each contractor, and send a copy to the IRS.

Based on that memo, even if the firm’s classification was correct, the risk was an increased likelihood of audit. And as we all know, audits are expensive propositions. Even if you emerge with no violations, penalty, or interest, it will likely cost thousands of dollars in accounting fees, and a whole lot more in emotional distress.

If you have misclassified true employees as independent contractors, however, the penalties and interest mount quickly. Another unanticipated consequence is that misclassification can jeopardize tax-deferred benefit plans which should have covered those employees.

A number of years ago Microsoft paid a huge sum for having misclassified part-time software programmers as Independent Contractors — some who had put in one or more years of service. They were also entitled to back benefits.

Federal Express is currently embroiled in a battle with 19 states over their decision to classify delivery drivers as independent contractors, rather than employees. They may have to pay over $319 million in penalties.

Defining the Independent Contractor isn’t always easy, even if it may seem obvious on the surface. On the Department of Labor Fair Labor Standards Act Advisor on Independent Contractors, they state:

“The Supreme Court has said that there is no definition that solves all problems relating to the employer-employee relationship under the Fair Labor Standards Act (FLSA). The Court has also said that determination of the relation cannot be based on isolated factors or upon a single characteristic, but depends upon the circumstances of the whole activity. The goal of the analysis is to determine the underlying economic reality of the situation and whether the individual is economically dependent on the supposed employer. In general, an employee, as distinguished from an independent contractor who is engaged in a business of his own, is one who “follows the usual path of an employee” and is dependent on the business that he serves.”

Slightly better information is found on the IRS web site. There’s also some pretty good detailed discussion in a post on The Human Resources Blog.

If you aren’t sure, consult with a qualified employment law attorney before a new relationship is established. It’s much cheaper than paying interest and penalties for a misclassification.

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There are many options available to help you securely manage passwords. Ironkey flash drives allow the user to carry an encrypted flash drive which will save your passwords, remember your favorite web sites  and also provided an encrypted environment to more safely transport your files. The 1GB drive starts at $79.00 and there are a variety of options to choose from.

Another option is Keeper desktop software from Callpod. Keeper will store and organize a multitude of passwords, user names and account notes, and it requires you to remember only one password! Attempting to log in five times, with the incorrect password will lock you out. Keeper is available for Windows, MAC, Linux OS and mobile iPhone, Android, and Vodafone. The application also features an Auto-Logout Timer which you set to a specific time frame to logout. Additionally your data can be exported in a number of formats for your backup should you have a full out hard drive disaster. Of course if you are not careful with the backup file, the whole exercise of buying Keeper could be pointless.

Keeper has a 15 day free trial and the purchase price is $29.95. Currently you can get the mobile version for free. If you have both versions, then you can synch your mobile with your computer and have a mutual backup system in place. If you are carrying a card in your wallet with all your user names and passwords written on it, it is time for you to check out Keeper or a similar application.

One of the areas of greatest interest to lawyers starting their law practice is billing for legal services. Most lawyers determine a hourly rate for their services following the factors sets out in Oregon Rule of Professional Conduct 1.5 Fees, (b) …”Factors to be considered as guides in determining the reasonableness of a fee include the following: (1) the time and labor required; the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the result obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.”

The third factor generally stumps new attorneys: how to determine the fee customarily charged in the locality for similar legal services. Antitrust concerns keep lawyers from asking what other lawyers intend to charge. To charge a reasonable fee, lawyers should be aware of what is a reasonable fee for providing legal services in their substantive practice area as well as geographic area. The Oregon State Bar conducts an Economic Survey every five years. The lastest survey was done in 2007 and forms the results posted online as the 2008 Hourly Rate Survey. Another resource is to go to the local courthouse to examine court filings containing attorney affidavits of fees that are filed in conjunction with the case such as in Probate Court matters, conservatorships and guardianships and probates. Common sense tells you that a large firm will charge more for providing legal services than a small firm or solo practitioner. Young associates likely will be billed at a higher rate than that charged by a sole practitioner with the same year bar number. Why the difference in hourly rates for two first year associates? For the young attorney in the firm, the overhead factors take into account the resources supporting the young attorney that will not be billed to the client.

Should you charge flat fees for services? Some transaction-based services lend themselves to a flat fee arrangement. $XXX for a will, power of attorney, and health care directive for a single person and $ZZZ for the same documents for a married couple. How much to set for preparing these documents should take into account how long it should take or will take with experience. At minimum, you should account for an hour consultation you’ll have, plus however long to prepare a draft, to review the draft with the clients, to finalize approved documents, and to have the documents properly executed and notarized. When you think through the steps you’ll be taking with your clients, you’ll realize a realistic amount that will fall within the guidelines of Oregon RPC 1.5 (5). This example is still a cost-basis, hourly billing based method. An example of an alternative fee basis is value-based billing, arriving at a cost that reflects the value of your services to your client.

If you intend to charge a flat fee, remember that until you earn the fee, you must put client money into your lawyer trust account. You may have heard about fees that are “earned upon receipt.” If you intend to be entitled to the full amount of the flat fee at case commencement, then you must put, “earned upon receipt” in your written fee agreement. If you do have an written agreement specifying that your fee is earned upon receipt, then you must put the entire flat fee into your general account, not into your lawyer trust account where you would be commingling funds. Be sure to fully advise your client of the nature of your fee. Clients welcome and expect clearly written fee agreements. Lawyers who do so, reduce the possibility of fee disputes and fee collections.

CAVEAT: Avoid calling a fee that is earned upon receipt “nonrefundable.” If you don’t do the work, you aren’t entitled to a fee. Oregon RPC 1.5(a) “A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee or clearly excessive amount for expenses.” If you try to charge a non-refundable flat fee earned upon receipt and don’t do the work, you would be viewed as charging a clearly excessive fee for doing nothing. Moreover, Oregon RPC 8.4(a)(3) advises that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law.” All clients have the right to challenge a fee as excessive, even if their fee agreement is in writing and have a right to be refunded fees for work not performed, see OSB Legal Ethics Opinion 2005-151. This Opinion deals with flat fees and points to the holding in the case In re Gastineau, 317 Or 545, 857 P2d 136 (1993). “The disjunctive use of the word ‘collect’ means that the excessiveness of the fee may be determined after the services have been rendered, as well as at the time the employment began.” In re Gastineau, supra, 317 Or at 550–551.

What about alternative fee methods such as value-based billing? How do you equitably charge for an opinion letter that saves your corporate client thousands of dollars in taxes? An hourly rate computation may not adequately compensate the lawyer providing the highly-valued services to the corporate client. It is analogous to the performance of delicate heart surgery; the skillful surgeon bases her compensation on more than time charges. Have a very clear written fee agreement to set forth your value-based billing arrangement. Value-based billing isn’t incompatible with Oregon RPC 1.5, see especially (b)(1) -(8).

I recently got an excellent guide to alternative billing called, “Winning Alternatives to the Billable Hour: Stategies That Work, Third Edition” by Mark A. Robertson and James (Jim) A. Calloway from the ABA. The book includes a CD with sample agreements and forms. Through the Oregon State Bar Professional Liability Fund, Oregon attorneys can purchase ABA books at a 15% discount. You can preview a sample case study, “Alternative Billing in Estate Planning,” and the ABA Book Briefs Blog excerpts a helpful portion of the book in an post titled, “Using Your Current Practice to Plan and Build a Billing Method.” As Mark and Jim point out, “a gunslinger doesn’t charge by the bullet.”
There is room to improve beyond the billable hour.

♫ It takes two, baby,
It takes two…♫

Music by Marc Shaiman, lyrics by Scott Wittman and Shaiman. Of course you can access past issues on their website as well as sign up for their newsletter by email.

A couple of updates:

One: OnPoint Legal Research’s Take Five Newsletter is now up for November, summarizing the 5 most interesting cases for BC: November Take Five

Two: Bob Denney’s November 2009 Legal Communique has now been released:

BUSINESS DEVELOPMENT AND MARKETING MAXIMS

‘Maxim: General truth or rule of conduct expressed in a sentence.”
The Oxford Dictionary

1. Be the best lawyer you can be.
2. Be afraid. Fear of failure guarantees success.
3. Don’t sell. Educate. No one wants to be sold legal services. Ask clients and
prospects what their problems are, then educate them on how you can help them.
4. Focus. Specialize. You can’t be all things to all people.
5. Have a marketing plan and follow it. Hell is paved with good intentions – and
marketing plans that were never implemented.
6. Market like you were a sole practitioner. If you don’t, you may become one –and
then you’ll have to.
7. Everyone in the firm must be a marketer, from the Managing Partner all the way
down to the messenger.
8. Current clients are your best sales agents.
9. Word-of-mouth is still the best form of marketing and business development.
10. Your friends may not become clients, but your clients can become friends.
11. Your next client may be across the table.
12. To get and keep your client’s business, know his or her business.
13. Treat every client as if he or she were your only client.
14. The three keys to delighted clients:
• Listen and communicate
• Listen and communicate
• Listen and communicate
15. Under-promise. Over-deliver.
16. Don’t be afraid to say “yes” – but have the courage to say “no”. The
magic words to a client are: “Yes, if . . .” or “No, but . . .”
17. Be a problem-solver, not a problem-maker.
18. Give the client alternatives but don’t stop there. Say, “It’s your decision but
I think this is what you should do and these are the reasons.”
19. Know your competition. It’s just as important as knowing your client.
20. Ask for the business.

Robert Denney Associates Inc. has provided strategic management and marketing counsel to law
firms throughout the United States and parts of Canada for over 30 years. Reports and discussions of
other timely issues are posted on his web site, www.robertdenney.com. His annual report on “What’s Hot and What’s Not in the Legal Profession” will be coming in December…visit his website to sign up for his newsletters.

When it comes to this post, it takes two!

Big-firm-lawyers with BlackBerrys are so common that the image this phrase conjures up is almost a cliché. And many solo practitioners have been quick to adopt the stylish iPhone, so that they can keep on top of calls and email with a minimum of assistance from staff. After all, solos don’t have to build group consensus and often don’t have IT issues that firms with more than one lawyer have to contend with when deciding on the right smartphone.

If you’ve been sitting on the fence, wanting to upgrade and trying to decide which smartphone, and which network, will best serve your firm’s needs, this 4-way comparison review of the top four contenders (iPhone, BlackBerry, Droid and Pre) from InfoWorld will help you make up your mind. There’s also a side article which provides a visual tour of the new Motorola Droid.

Users can indicate that they are unlocking their BlackBerry Smartphone against their will by moving the first character of their password to the end. For example, if a BlackBerry smartphone user’s password is “blackberry”, the duress password will be “lackberryb”. Your duress password is easy to remember because it is a slight variation on your own personal password.

Once entered, the BlackBerry Smartphone will unlock as normal, without any indication that the duress password was entered instead of the normal password.

If the duress password sequence is entered, an email message will be sent to one or more designated people or lists/groups. As a safety feature, the BlackBerry Smartphone will not save a copy of the email message in the Sent Items folder on the BlackBerry Smartphone, nor will it show the network communication arrows when sending.

This works almost identically to how my home alarm system works, except that the duress password is not a variation of the real password, and the entering of it will trigger an immediate request for a police response. This feature provides an amazing sense of security at a time when one hears of home invasions almost daily.  

Similarly, with abductions and car jackings featured almost nightly on the news, I’m glad to have this extra level of security on my BlackBerry.

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The American Bar Association, represented by a Proskauer Rose team led by partner Steven Krane, filed a complaint which argued that the rules would impose a serious burden on law firms, and sought an injunction and declaratory judgment finding that lawyers were not covered by the rule. The FTC contended that lawyers should be covered, because many of their billing practices, such as charging clients on a monthly basis rather than up front, made them “creditors.”

I posted a link to the article on SLAW two months ago, but thought the points in it are worth repeating for readers of AvoidAClaim. Not just to highlight the risks, but also to remind lawyers of the steps they can take to reduce their exposure to a malpractice claim and to encourage them to use the resources on the practicePRO.ca website to accomplish this – see a list of these resources at the end of this article.

When times are good, bumps in the road won’t always cause problems. Clients are upbeat and they want the deal to close, their problem resolved or the litigation matter to proceed. Happy clients are far less likely to sue their lawyers for malpractice.

However, in tough times, clients squeezed by money problem scan become unhappy and they will be more likely to look for ways to allege that their lawyers made a mistake. In a similar fashion, lawyers squeezed by financial problems can also find themselves more likely to engage in risky behaviour. Unhappy clients and risky lawyer behaviour translate into more LAWPRO claims.

In good times and bad, avoiding a legal malpractice claim requires that you understand where the risks are so that you can respond to them by proactively taking steps to reduce your exposure to a claim. As you will see, the risk management strategies you should employ in good times and bad are essentially the same. And, as clients are likely to hold you to a higher standard when money is tight, being proactive with risk management becomes even more important in tough times.

The most common malpractice claims

As has been highlighted in more detail in past issues of LAWPRO Magazine (See this article for more detail), in good times and bad, in most areas of the law, lawyer/client communication problems are the number one cause of claims. Deadline and time management issues are the second most common type of error, followed by claims that arise because the lawyer didn’t dig deep enough into what the client wanted or needed, substantive law errors, conflicts of interest and then clerical/supervision errors.

And contrary to what most people think, the malpractice errors made at solo, small, medium and large firms are virtually identical in proportion and type. People make mistakes and systems don’t work properly in similar ways, regardless of firm size. See this LAWPRO Magazine article for more detail on this point.

Tough times make clients more demanding

A client squeezed by financial problems may behave in a less reasonable or rational way. A financially desperate client may act in a totally irrational way. A client’s financial health can take a turn for the worse very quickly and unexpectedly. Don’t under estimatethe impact that financial pressures or changed circumstances can have on an individual, or on the relationships between family members or business partners. People who were all previously marching in the same direction can all of a sudden want very different things (e.g., a sale of business or a buy-out of an individual interest). If the matter or amount of money at issue is significant, even long-standing and loyal clients can turn on you. They can see a malpractice claim as a potential solution to their financial difficulties.

In response to financial pressures or changed circumstances, clients may want to back out of business deals or delay litigation matters that would have otherwise proceeded in a good economy. To this end, they will look for ways to allege that their lawyers made a mistake. You will be held to a higher standard. Minor questions or issues that would have warranted little or no attention in good times can become deal breakers in bad times. When making an allegation of malpractice, unhappy clients will look to exploit (with or without merit) one or more of the following: retainers with a vague scope; poor lawyer/client communication; missed deadlines or delay; ambiguous language in documents; unanticipated scenarios or circumstances; unexpected results or outcomes; and immaterial conflicts of interest.

Five key risk management strategies

These five risk management strategies will help you reduce the risk of a claim when you are dealing with demanding clients:
1. Start out on the right foot with a written retainer: The retainer letter or agreement is your terms of engagement. It should clearly identify who the client is and what you are retained to do. A written retainer can protect you if there are unexpected changes in the scope of the engagement as the matter progresses.
2. Control client expectations at all times: Clearly and accurately communicate to your clients the available courses of action and possible outcomes; all the implications of any decisions; how long things will take; and the expected fees and disbursements. This strategy, coupled with the next one, is your best protection from a malpractice claim in good times and bad.
3. Document everything (almost): It is just not practical to document everything on every matter, but you should document as much as you can in some contemporaneous manner. Letters are fine, but emails, detailed time entries and marginal notes on documents can be equally effective. In particular, you want to record advice or instructions that involve significant issues or outcomes, and major client instructions or decisions. Documenting things is especially important when you are dealing with clients who are difficult or emotional due to financial stresses. Documented communications help confirm what was said or done for the client in the event you ever need or want to look back to explain why or what work was done, to justify an account, or to defend yourself on a malpractice claim.
4. Meet or beat deadlines: Set realistic deadlines when it comes to completing tasks and/or delivering things to clients. Underpromising and over-delivering (i.e., earlier than promised) on work for clients will make them very happy. Don’t leave things to the very last minute, as unexpected events beyond your control (blackouts, snow storms, taxi got lost on way to file documents) may prevent things from happening as required. Giving yourself an extra day or two by setting your deadline before the real deadline can be a lifesaver.
5. Send interim and final reporting letters: They should confirm what work was done and the successes obtained for the client, outline future steps, and confirm that the retainer is terminated. This helps keep the client fully informed, and can be critical when it comes to defending a malpractice claim if circumstances unexpectedly change as you work on a matter for a client or after your retainer is terminated.

Risky lawyer behaviour to avoid

Lawyers under economic and financial pressures can also find themselves more likely to engage in a variety of risky behaviours. These are discussed in more detail in the following paragraphs.

Don’t dabble in areas of law outside your expertise: When you are not busy and have extra capacity to do work, it is just so tempting to take any client who walks through the door, even if you have limited expertise in the area of law in which they require help. The pressure to do work outside your usual practice area for an existing client, family or friends can be even greater. Lawyers who hoard work because they are under pressure to increase their billable hours or billings also have a tendency to dabble. Don’t do it! Resist the temptation and pressure. As a “dabbler” you will be less efficient and effective – and far more prone to a malpractice claim. LAWPRO’s claims tell us that dabblers make more than their fair share of mistakes when it comes to knowing and applying substantive law.

That is not to say you should never consider doing more work in or switching to a “growth” area of law. But, if you do so, take steps to become competent by attending CLE programs, working with other lawyers who already know the area or seeking help froma mentor.

Poor client selection: Shortages of work or money pressures canal so cause lawyers to engage in another type of risky behaviour: poor client selection. Poor client selection manifests itself in a variety of ways. It can be working for a client that is unwilling or unable to pay an initial retainer or ongoing fees. It could also be acting for a very difficult client or one who has unrealistic expectations about the strength of his case, the cost of proceeding with it, and/or the likelihood of success. With these types of clients, collecting and replenishing retainers is critical to avoid fee disputes. And carefully setting and controlling their expectations by documenting communications is key to avoiding disputes.

Taking shortcuts: Clients under financial stress are going to want lower legal fees. To please a client with a faster turnaround time and/or lower fees, lawyers may find themselves tempted to take shortcuts. Taking shortcuts means a lawyer will do less work than she might otherwise have done on a matter. This could be skipping searches on a real estate deal, taking less care in reviewing or drafting a document, skipping discoveries or not ordering transcripts, not completing enough due diligence or not updating research.

In some cases taking shortcuts will be fine, provided the client fully understands and accepts the risk. But never let the client’s financial distress expose you to a malpractice claim because you didn’t take all of the necessary and appropriate steps to handle the matter in a competent way. If your client instructs you to take shortcuts, carefully document your advice to her on the risks of doing so.

Don’t sue for fees: Tough times mean there will be more clients who are unwilling or unable to pay their legal fees. This will lead to more lawyer/client fee disputes, and in turn, more lawyers suing their clients for fees. Think twice before you sue for fees. A suit for fees almost guarantees a counter-claim alleging negligence.

The better solution: Get the money up front so you avoid fee disputes altogether. At the time you are retained, get a retainer that is sufficient to cover all initial work that needs to be done on the matter. Replenish retainer funds before they are exhausted (setup your accounting system to monitor and remind you when the amount in trust is getting low). Stop working on the file if the retainer is not replenished – working on credit greatly increases the likelihood you will not get paid for your work, especially in tough times.

Lawyers or staff dipping into trust funds: Financial problems caused by tough times or personal difficulties can be the motive for even the most long-serving and trusted staff or lawyers to commit fraud. Weak internal controls coupled with the knowledge of firm systems and how to get around them create the opportunity for them to get away with it. Internal law firm fraud has been very costly for the insurance program. See When The UnthinkableHappens: What To Do When Partners, Associates Or Staff Commit Fraud for information on recognizing when internal fraud may have occurred, and how you should respond.

Watch for conflicts of interest on lateral hires: Lateral hires of partners or associates frequently occur in bad times. A strong desire to hire a transferring lawyer should not lessen the need to identify and honestly assess potential conflicts, and to take appropriate steps to deal with them if necessary (e.g., confidentiality screens or client waivers). A failure to deal appropriately with these conflicts only delays the inevitable: in all likelihood the firm will have to refer any clients with a conflict to another firm.

Conclusion

When times are tough, clients in financial distress are far more likely to sue their lawyers for legal malpractice, and financially pressed lawyers may be tempted to engage in risky behaviour. In these circumstances, risk management is more important than ever. Use the knowledge you have gained from this article and the tools and resources mentioned below to reduce your exposure to a malpractice claim.

practicePRO claims prevention tools and resources

Numerous tools and resources that can help you reduce the risk of a malpractice claim are available at www.practicepro.ca.
These include:

• LAWPRO Magazine Archive: Articles from all past issues of the magazine
• LAWPRO Resources Topical List page: Articles and resources sorted by topic
• Retainer precedents for several of areas of law and matter types
• Dealing with difficult clients paper and client file opening information memo precedents
• Limitation periods charts
• ILA checklist
• Sample law firm business plan and budget
• practicePRO Lending Library: Books on law practice management issues that Ontario lawyers can borrow for free (Sorry – Ontario lawyers only!)
• practicePRO Wellness and Balance Page: Tools and resources to help you manage stress

There is a fantastic article by John Harvey at page 12 in the October 26 issue of Law Times. (Sorry I can’t give you a public link – unfortunately it is locked up for Law Times subscribers – They can access it in the Law Times Digital Edition here.

While written for Ontario lawyers as it references the Ontario Family Law Act (FLA), the risk issues the article highlights are very relevant for lawyers in other provinces and territories.

The article has some great comments and quotes from Lorne Wolfson of Torkin Manes LLP. The closing quote of the article says it all: “Estates practitioners must be extremely cautious when advising clients with respect to the potential consequences of estate planning techniques in the event of a separation of their clients and/or their client’s children”.

The article advises trusts and estates practitioners to think about the impact of the FLA when creating trusts. Trusts can certainly help with the deferral of taxes, but the FLA can throw some curves into the mix if the marriages of the clients or their beneficiaries end. In the event of a marriage breakdown the FLA dictates what counts as matrimonial property, and by extension, income if the issue of support in on the table.

The article has a good discussion of some of the issues and law in this area. It also makes another key point – estates practitioners shouldn’t dabble in family law – they should get some help from a lawyer that understands and can advise them on the potential FLA issues.

If you are a Law Times subscriber, pull the Oct 26 issue out of your inbox and read this article – it could help you AvoidAClaim.

If you are looking for a tutorial or “how to” for a specific software application feature, search on YouTube. There are video tutorials available for everything from how to reconcile a bank statement using Quickbooks, inserting video into a PowerPoint presentation, entering a to do in Amicus Attorney, creating an electronic signature in Adobe Acrobat and many more. Just go to YouTube and use their search feature. Enter a search term such as “Adobe Acrobat signature,” hit search and YouTube generates the list of how to create a digital signature files!

• The lawyer is encouraged to obtain necessary and relevant information from the client at the outset of the transaction. This information assists the lawyer in meeting the due diligence requirements of title insurers and ensuring that appropriate endorsements are obtained, if needed. For example, special searches may be required by the title insurer if the property has private services and a rural property endorsement may then be available from the title insurer.
• The lawyer is encouraged to communicate with the client at the outset of the transaction about the future use of the property. This, once again, allows the lawyer to determine if a special endorsement should be obtained for a proposed future use involving a change of the property. It also allows the lawyer to consider whether to recommend title insurance at all, or to advise the client to obtain an up-to-date survey and fuller inspections/searches to determine more conclusively if the proposed use can be implemented.
• The lawyer is reminded to review with the client what searches or inquiries the lawyer will not be undertaking (if any) due to the choice of title insurance and the possible impact of those searches. For example, in many cases a Building Dept. search will not be undertaken if title insurance is being purchased. If the property includes a basement apartment, some clients may be more interested in knowing that the apartment is definitely legal and can be rented out than knowing that they are entitled to make a claim under an insurance policy for a loss of property value if the apartment must be removed. Also, there are possible adverse consequences for the client if the lawyer allows a requisition date to pass without making a given search, a problem comes to light before closing that would have been revealed by the relevant search and the title insurer will not insure over the problem. The lawyer needs to bear that issue in mind, along with any published policies of title insurers on the issue, when deciding not to make a given search.
• The impact of the knowledge exclusion in a title insurance policy is highlighted, so that the lawyer remembers to determine if the client has any adverse knowledge that must be disclosed to the title insurer.
• The lawyer is reminded to review with the client the coverage that will be available under the client’s title insurance policy before closing, the lawyer having him/herself reviewed the exclusions and exemptions in the draft title insurance policy. The Guidelines provide an overall list of items for the lawyer to consider when reviewing the draft policy or binder/commitment.
• The lawyer is reminded to issue the policy as soon as possible after closing, in case the client needs to put in a claim in the early days of owning the property, and to compare the issued policy to the draft.

Most title insurance policies generally available in Ontario do not include legal service coverage (although the TitlePLUS® policy for purchases and/or mortgages does). All of the above are possible areas of liability related to the use of title insurance for the unthinking lawyer. The Practice Guidelines are a resource and a safety net for lawyers wanting to maximize their clients’ protection through title insurance while managing their own risk exposure along the way. Please take a look at them as they could help you AvoidAClaim.

♫ Feel in my heart
the start of something new…♫

Lyrics and music by: Matthew Gerrard & Robbie Nevil, from High School Musical.

The BC Courthouse Library Society is launching their new website today (http://www.courthouselibrary.ca/cms/) which should be ‘live’ shortly (the old site is still there as this is posted).

The new site certainly fulfills their Strategic Direction as set out on their site:

Provision of Legal Information, Products, and Services to Members of the Legal Community:

Goals:

This is certainly not your standard library research website. Johanne Blenkin, Mandy Ostick and their team deserve full credit for their ‘out of the box’ thinking and creativity. There is a blog included as part of the site (called “The Stream”), a “New and Notable” section that can be organized by practice areas and “Practice Portals” (presently Civil Litigation, Family Law, Personal Injury, Practice Management & Technology and Wills & Estates) that recommend books, publications and news in these specific areas (which I expect will be expanded shortly).

The Search function is customizable (you can search everything or search specific areas such as BC Proclamations or News Archive or any combo of the 10 sources presently listed). If you wish, you *could* just search the library catalogue, but with the wealth of resources on their site, why would you? Chances are your search will be much more valuable by looking at the additional resources that Mandy and her team have built.

You can save your searches (after logging in) to save time if you continually look for information on specific topics. There are subject guides to aid in your starting out researching in such subjects as Federal Legislation or Pleadings or Costs and other 4 areas listed along with “How To” guides and video tutorials.

Hats off to the BC Courthouse Society for moving legal research and law libraries a quantum leap forward in terms of web site design, functionality and appeal. I feel in my heart that this is truly the start of something new…

As part of a brief endorsement dated November 3, 2009 in RE: IN THE ESTATE OF Evelyn O’Reilly, et. al., Justice D. M. Brown of the Superior Court Of Justice–Ontario provided some useful direction on the form and content of an order in applications to prove a lost will under Ontario Rule 75.02. Ontario lawyers handling this issue on estate matters will find Brown J.’s comments helpful.

The relevant part of that endorsement is as follows:

[2] My only purpose in writing this brief endorsement is to deal with the form of the order. Since the Rules of Civil Procedure do not prescribe the form for an order made under Rule 75.02, judges see a wide range of language submitted for proposed orders proving lost wills. In order to bring some uniformity to this type of application, I would ask applicants to submit draft orders using the language recommended several years ago by (now retired) Justice Haley. The draft order should read:

I declare that the Will of [insert name of deceased] dated [insert date of will] has been proved and that the copy of the Will adduced in evidence shall be admitted to probate as the last Will of [insert name of deceased] deceased, until such time as the original may be found.

I direct that, subject to the filing of the appropriate documents with the Court, a Certificate of Appointment of Estate Trustee with a Will for the Will of [insert name of deceased] dated [insert date of will] be issued to the applicant(s).

To this language should be added any other orders sought by the applicant, such as dispensing with service of the application, etc.

[3] Judges considering these applications are provided with a template endorsement using this language. Therefore, in order for an applicant to avoid the delays associated with submitting a draft with different language and then having to submit a revised order that tracks the language of the endorsement signed by the judge, the language I have set out above should be used in the draft order submitted with the application record.

The decision is unreported as of today’s date, but I understand will be posted on CanLII next week. In the interim a copy of it is available here.

This came to my attention via the Ontario Bar Association Trusts and Estates Section’s list serve.

From time to time I get calls from lawyers who are looking for information on shuttering their practices. Sometimes it’s for happy reasons, like appointment or election to a judgeship or a long-awaited retirement. Other times it involves a family relocation and, sometimes, small firms just don’t gain the traction they need to keep on keeping on, so the principals decide it’s time to move on to something else. Here are some thing to think about should you decide to close your practice.

1. Consult with your tax advisor to discuss your plans and develop a strategy which will minimize your taxes in the event that you transfer assets to another lawyer or firm.
2. If you are a solo practitioner, call the Office of General Counsel for an informal opinion on any plans you may have to transfer files or assets to another lawyer or firm. Although the ABA Model Rules of Professional Conduct and the ethics rules of several states now allow the sale of a law practice, the Alabama Rules of Professional Conduct do not. Make sure that any plans you have for referrals of ongoing cases meet the requirements of the rules.
3. Once you have formed your plan and know your timeline, discuss your plans with your staff so that they will know what to expect. The more you can tell them about how much longer you will need their services and whether you can offer them a severance package and otherwise assist them in finding other jobs, the more likely they will be to stick with you to the end if you need them.
4. Review your malpractice policy and contact your malpractice carrier to determine whether you need “tail” coverage. Purchase any necessary coverage.
5. Review all open files and separate them into three categories: (a) Cases in which the client would be prejudiced if you were to withdraw; (b) Cases with short statutes of limitation; (c) Everything else. Then, either work through the matter, assist the client to find another attorney, or return the file to the client with appropriate instructions to ensure that the client doesn’t miss the statute of limitations or other deadlines, as is appropriate.
6. Review all of your closed files and segregate any retained original documents or physical property such as wills, deeds, contracts, or evidence. Send a letter to all former clients telling them that you are closing your practice, informing them how they can contact you in the future, and offering their files to them. Give them a specific method to obtain the file and a time by which to do so, and notify them that if they fail to obtain their file that it will be destroyed in accordance with your file destruction procedure. Let them know how much longer you will retain the file if they fail to pick it up, and tell them that it will be destroyed after that date. Be sure to document all returns and destructions. See Formal Opinion RO-93-10 for more information.
7. Perform a complete audit of your trust account and return all client or third party funds to the appropriate person or entity. This includes resolving any outstanding, uncleared checks.
8. Diary your calendar to file all end of the year reports such as 1099 filings, tax returns, etc.
9. Review your lease and take the steps necessary to terminate it early, if allowed.
10. If you have leased any office equipment, review these leases and take the steps necessary to terminate them early, if allowed.
11. Check the status of all quarterly, withholding, or other tax payments due, and make any unpaid payments.
12. Send a letter to the judges and clerks in the counties in which you practice, notifying them that you are closing your practice. If you are on any appointment lists, ask that your name be removed or, if you will continue to accept occasional pro bono cases, let them know that.
13. Send letters to all vendors with whom you have done business, canceling all subscriptions. Pay your account in full at this time, if possible, and specifically notify them not to send you any further updates, books, or supplies.
14. File the appropriate forwarding instructions with the Post Office to make sure that mail sent to your office address is forwarded to your post office box or, if you don’t have one, to your home address. Forwarding orders are good for six months, so diary the expiration date and make sure that you renew the forwarding order for an additional six months. If you have an office post office box, plan to keep it for at least one year after you close your practice.
15. If the service is available in your area, when you cancel your phone service reserve your telephone number and have it directed to a voice mail box. This is much cheaper than the monthly rate for a business line, and will allow you to retrieve your messages and return phone calls. Plan to keep this service for at least a year after your close your practice. If this service is not available, try to have your calls directed to another number or consider retaining one line with voice mail for six months to one year after you close the practice.
16. Make up cards with your name, forwarding address and phone number, and leave them with your office neighbors and, if possible, the new tenants of your space so that they can help former clients find you if necessary.
17. Consider giving any office furnishings or equipment which you cannot sell to charity and take a deduction. Remember that confidentiality must be maintained at all times, so consider removing hard drives from computers if you are not confident that all client information has been deleted and cannot be recovered.
18. At the end of the fiscal year when you receive your municipal business license renewal form notify the licensing authority of the date on which you closed your practice.
19. Notify all professional organizations and associations of which you are a member of the closing of your office and your contact information.
20. Notify the Alabama State Bar and the Administrative Office of Courts of the closing of your practice and of your new address, and diary your calendar to file your CLE report for your final year of practice. This report must be filed by January 31 of each year if you held a regular license to practice at any time between October 1st and December 31st of the previous year and were not a new admittee.
21. When time comes for your license renewal, if you do not wish to renew as a Special Member, notify the State Bar in writing that you wish to be voluntarily inactive so that you will not be classed as “not in good standing” due to non-payment of dues. Maintaining a special membership is a good idea if you think you might ever wish to practice law in Alabama again. At the present time there are no remedial CLE or testing requirements to re-activate your license, but that could change at any time.

The adjacent pie chart shows the amount and proportion of communications related errors relative to the other most common errors we see.

More detail on the different types of errors appears in this article The Biggest Malpractice Claims Risks from the Summer 2008 (Vol. 7 no. 2) issue of LAWPRO Magazine, “practicePRO: Helping Lawyers for 10 Years.”

It is interesting to note that for sole, small, medium and large firms alike, roughly one-third of claims are communications-related. This is a profession-wide issue. More on this in a future post.

There are three types of communication-related errors. The most common is a failure to follow the client’s instructions. Often these claims arise because the lawyer and client disagree on what was said or done –or not said or done. These claims tend to come down to credibility, and in handling claims LAWPRO finds these matters are difficult to successfully defend if the lawyer has not documented the instructions with sufficient notes or other documentation in the file.

The second most common communications error is a failure to obtain the client’s consent or to inform the client. These claims involve the lawyer doing work or taking steps on a matter without client consent (e.g. seeking or agreeing to adjournment; making or accepting a settlement offer); or failing to advise the client of all implications or possible outcomes when decisions are made to follow a certain course of action (e.g. pleading guilty on DWI; exercising a shotgun clause).

Poor communications with a client is the third most common communications error. These claims often involve a failure to explain to the client information about administrative things such as the timing of steps on the matter, or fees and disbursements. This type of error also arises when there is confusion over whether the lawyer or client is responsible for do something during or after the matter (e.g. sending lease renewal notice to landlord, renewal of a registration or filing).

On top of being the most common malpractice errors, communications-related claims are also among the easiest to prevent. You can significantly reduce your exposure to this type of claim by doing the following things:

• Controlling client expectations from the very start of the matter: make sure your clients have realistic expectations about the timing, process, outcome and costs.
• Actively communicating with the client at all stages of the matter: make sure your client understands how the matter is moving along and that any delays that occur are explained.
• Creating a paper trail: In time entries, memos to file, and/or emails or reporting letters to your clients carefully document information provided by the client, instructions and advice, and confirm what work was done on a matter at each step along the way.

I will post more information on lawyer/client communication-related errors in future posts, including information on the specific types of communications errors LAWPRO sees in different areas of the law.

I spoke at the The Oregon Minority Lawyers Association (OMLA) and the Multnomah Bar Association (MBA) Hanging Out Your Shingle yesterday with two successful Portland, Oregon solo practitioners, Ken Mitchell-Phillips of Mitchell Phillips Law PC and John Kodachi of John A. Kodachi, PC. Our panel was moderated by Anastasia Yu Meisner, Guyer Meisner, Attorneys, a small firm that has found its sucessful niche in Lake Oswego, Oregon.

We talked about the importance of planning – having a written business plan. Ken shared his great experience with having a written business plan and using it as a guide for staying focused. John stressed how difficult it is for new solo practitioners to juggle wearing different hats and maintaining focus. Both Ken and John keep the business coming in the door by having sound client development plans which include staying connected in their networks.

Have a plan and stay focused by using the plan. Fine tune where you are hoping to end up. Much like having a planned route and adjusting directions to take into account road construction and other barriers to getting to one’s destination on time and not frazzled.

In working with Oregon attorneys gearing up to go out on their own, I stress having a written business plan. It is a big effort to put together a business plan, but worth it. You don’t want to skimp on your business plan and just create some barely helpful document you put in a file and forget. Your business plan should include a Marketing Plan, Management Plan, and Financial Plan. Don’t just keep your plan in your head: write it down. Studies of Harvard School of Business grads have indicated that the focus is sharpened considerably by writing down the plan. Otherwise, it’s too easy to get derailed. For lawyers, trying to run their own firm, there is much coming – fast and frequent– that leads to derailment. I think the Pareto Rule: 80% of your result comes from 20% of your effort sums up things. One lawyer can become exhausted doing 80% of the things that only goes toward 20% of his result. You have to focus on the 20% effort going toward 80% of your result. Being efficient, is doing things right, being effective is doing the right things. Having that written business plan, as Ken shared, will keep you effective.

Can you create your own business plan? Yes. There are lots of resources for business plans. You need to address professional services issues that general retail businesses don’t. I personally think that the resources shared by Dan Pinnington, Director of Toronto’s PracticePRO, a part of LAWPRO, Ontario’s malpractice insurance carrier, are priceless! See PracticePRO for the practice aids for managing the finances of law practice including an excellent Business Plan template. Thanks, Dan and PracticePro.

You can find the Directory near the end of the lawyer listings and listed in the Table of Contents. It is meant to encourage and facilitate lawyer to lawyer consultations, referrals and associations. (You might want to check the Solo & Small Firm Practice Area Directory for referral lawyers too.)

Lawyer-to-Lawyer is a great idea. Professors in law school always told us to call on an experienced lawyer when we have questions. Knowing that someone volunteered to be “bothered” with our question makes it a lot easier to pick up the phone and call for help.

♫ I’ve seen the future, baby:
it is murder.
Things are going to slide …♫

Lyrics, music and recorded by Leonard Cohen.

I had the pleasure of attending The Futures conference in Denver CO recently that was part of the College of Law Practice Management’s Annual General Meeting.

Several themes were developed during that conference, some of which took some time to fully appreciate. Certainly there was a healthy divergence of opinion on the future of lawyers, being the theme of the conference. However, I thought I would take a moment and encapsulate my thoughts on some of these ideas based on the forces that are presently shaping the legal profession. Certainly central to my thoughts are the Legal Services Bill in the UK as well as the power of the Internet as a disruptive technology. Together these, as well as other underlying forces, in my opinion, will change the legal profession as we know it.

ODR:

Online Dispute Resolution is one technology that is not present even on the radar of most lawyers or law firms. Certainly they do not see it as a threat or even an opportunity. However, in my view, it has a huge potential to change the legal profession. In my opinion, it is certainly being looked at by court administration officials and governments anxious to cut costs and provide greater access to dispute resolution services.

What are the trends that we see? Every court registry has seen a dramatic increase in the number of self-represented litigants. How much longer will they seek to use a system that has been designed to work for lawyers rather than have a system that has been designed to work for them? So many litigants today are self-represented since they cannot afford to hire a lawyer to economically handle their case. Online dispute resolution offers the promise of a system where they are in greater control of not only their own case but also the process surrounding that case. In other words, the laws of economics have driven litigants to find a different solution – and sooner or later they will demand that the system change to meet their requirements…for easier access (by the web rather than in person), for access on their schedule (asynchronous communication rather than synchronous), for a flexible process and procedure (they have input into how their dispute is resolved rather than dealing with a rigid court process) and a process that is both seen as being fair and inexpensive.

The world of ODR is only starting to develop. But if lawyers do not embrace ODR and shape it to be a part of the justice system, it will instead develop in parallel to the justice system and eventually compete with it. In my opinion, ODR will have the laws of economics on its side, and as well all know, it is the laws of economics that eventually win out over all others.

Access to Justice = Access to Lawyers?

Most lawyers view access to justice as being equivalent to increasing the access to lawyers. However, if you talk to a member of the public, I believe they would say exactly the opposite – that lawyers in many ways impede the access to justice.

However right or wrong that view may be, the legal profession has not (yet) realized that a sizable part of the public do not see the legal profession as necessarily being part of the solution to increasing access to justice. And that is more than just troubling. It is downright scary. While the legal profession stands for strong principles of fairness, equity and justice, the public views lawyers as being barriers to these same values and principles.

So the future of lawyers lies in our own hands…the question is, what are we going to do about it? We can seize the initiative and build our own future…or we can let events continue as they have been…in which case I think I see the future baby, and it is murder…things are going to slide…

When I was in my last year of McGeorge Law School in Sacramento, California, I decided to start my own law practice. Along with my law books, I toted Jay Foonberg’s “How to Start & Build a Law Practice,” getting myself ready to run my own show. Jay was my mentor. Then I moved to Oregon. Took and passed the bar and opened up my solo practice in Portland, Oregon. Luckily, I rented office space from a great group of attorneys who owned their building and were willing to rent out the small office at the top of the stairs. Thanks, Bob Demary, Mike Sandoval, Susan Teller, and Carol Westendorf! You each supplied a bit of mentoring on the fly and devoted time to just talk about how it was going or wasn’t going. Shortly after moving into my office, I joined the Multnomah Bar Association. Through the MBA’s formal mentor-mentee program, I got my mentor choice in elder law, Cynthia Barrett who let me come into her elder law office and see how to best handle everything from client intake to document signing. I remember Susan and Carol both encouraged me to keep a journal of my first year – that it was an important one. I was too busy to keep a journal, but I kept good memories. That first year went fast. Though I was a solo, I wasn’t alone.

Last night I got to do my second of two mini-classes for the Lewis & Clark School of Law Graduate Fellows Program for the 2009 graduates. Wonderful young attorneys eager to start their careers. Eager to learn last week about calendaring, docketing, and file tickling and last night, avoiding conflicts of interests and ethical pitfalls. The first year is a foundational year. Many of the faces were young and I expect they will still be practicing law in 30 and 40 years. In 30 to 40 years, I’ll be looking among their midsts for a good elder law attorney no doubt!

Next Wednesday, Thursday, and Friday the PLF does its annual “Learning the Ropes” program for newly admitted attorneys and others entering private practice. There will be young lawyers who hail from Lewis & Clark, Willamette, and University of Oregon, and likely others like me who came from law schools elsewhere. What is their first year as a lawyer going to be like? Many of them will be wondering that same question. I don’t know how many of them have landed jobs already.

I suspect this year will be lean for law jobs. It may not be an exaggeration that the majority of newly admitted Oregon lawyers likely have not yet landed jobs. Some may decide to hang their own shingle as a solo or gather together a few fellow law school graduates to start their own firm. How are they going to get mentored?

I put out a call to each of you to remember your first year as a lawyer. If you’re an alumni of one our law schools, Lewis & Clark, U of O, or Willamette, give your alumni office a call and reach out to a recent grad. If you come across a new lawyer, offer to get together for a cup of coffee to find out how it’s going or not going. A year goes fast.

It’s time to start thinking about making plans to attend ABA TECHSHOW 2010. For those who are not familiar with it, TECHSHOW is the ABA Law Practice Management Section’s annual two and a half day CLE program and vendor expo centered around practice management and the use of technology in the practice of law. ABA TECHSHOW 2010 will be March 25-27 at the Hilton Chicago, and Alabama State Bar members receive a $150 discount off the regular registration price. Check the ads in upcoming issues of The Alabama Lawyer and The Addendum for the discount code, or give us a call at the Practice Management Assistance Program for more information.

In order to help those who have never attended before know just what a great value this CLE program and expo is, the ABA TECHSHOW Blog reports this morning that it will be posting a Best of TECHSHOW paper and slide show each week from now until the show, free for download. The first installment, which is supposed to be available soon, will be Email Archiving: So What’s Wrong With Saving Everything? originally presented by Peg Duncan and R. Jason Barron at ABA TECHSHOW 2009.

Add the ABA TECHSHOW Blog to your regular daily reading and don’t miss out on these extremely useful papers which will help you save time and improve the way you practice law. And don’t forget to put ABA TECHSHOW 2010 on your calendar now!

In these difficult economic times attorneys are frequently asked to adjust their fee structure for a variety of reasons. When you are under pressure to discount your fee structure or make special arrangements with just this one client just this one time, excuse yourself from the situation, find an Internet connection and watch this YouTube clip. Return to the fee negotiations with a renewed sense of the value of your work and the reasonableness of the client request and then decide if you should reach a fee accommodation.  

I received two email messages recently. Each was from someone I did not know. Both posed a single, easy-to-answer question, but it’s amazing how different my reaction was to each.

The first contained nothing but the question and the sender’s name and city. The question challenged something that I had written in an article in Law Practice Magazine. I was surprised at how visceral and angry my reaction was. It wasn’t that the person questioned what I had written. Normally, I would be delighted to discuss an article and hear someone else’s point of view, but the sender didn’t lead up to the question by telling me who she was or why she was interested in the issue. Her email didn’t contain a signature and her email address didn’t give me any indication of where she worked or why she might be trying to pin me down in writing (OK, email) to a particular position on the issue in question.

The second email was also from a stranger, but the sender had given a little more thought to posing her question. She started out by telling me who she was, where she worked, and why she was contacting me. She then posed her request, and ended her email with a signature that included her company’s name, a street address and phone number, and a link to her company’s website, where I could verify who she was. Needless to say, I was much more receptive to responding to her request for information.

We’re all busy, and email can help us accomplish many more things in a single day that phone calls and letters, but it can backfire on you if you don’t take a few steps to help the person receiving the message. Here’s what you can do to make sure your email messages are answered promptly:

• If the recipient doesn’t know you, or if you’ve met only once and may not remember you, introduce yourself.
• State your question or requiest simply, but provide enough background information for the recipient to understand what you want and why you want it.
• Use a professional-sounding email address that identifies you or your law pratice.
• Remember that a brief email can come across as rude if not thoughtfully worded. Use complete sentences and proof-read your message before you hit Send.
• End your message with a signature that includes your full name and the name of your firm. If you have a website, provide a link.
• Include your phone number in your signauture. Often, you’ll get a much faster, and more complete, answer if you provide the recipient with the option of responding immediately by phone.

Windows 7, Microsoft’s latest operating system, went on sale today. While people are not lining up around the block to purchase a copy, many lawyers may be wondering whether it would be worth their time, money and trouble to upgrade from XP or Vista. Like most questions raised in the law office, it depends.

I’ve spent the morning reading multiple articles and reviews, and the concensus seems to be that Windows 7 is beautiful, has a some great new features, and is a huge improvement over Vista. If Vista is your current operating system – go for it! The install is reported to be relatively easy and there is lots of information on how to handle the transition. But, if you are currently using XP, unless your computer has lots of memory and a very fast processor, you’ll be better off to wait until you purchase a new PC to take advantage of Windows 7’s improvements (although there are 7 days of deals available on the new operating system and hardware). For one thing, you cannot simply upgrade from XP to Windows 7. You will need to perform what’s called a clean install – removing all your data and programs from your hard drive, installing the new operating system, and then moving everything back. I don’t know about you, but I’ve got better things to do today.

If you’re interested in learning more about Windows 7 and whether it’s right for you now, Windows Secrets has a good short article on The Pros and Cons of Switching to Windows 7. PC World’s Windows 7 Review lays out what’s new and what it can do for you. David Pogue covers some of the neat new features in his New York Times Personal Tech column Windows 7 Keeps the Good, Tries to Fix Flaws. And PC Magazine has a good article on whether Windows 7 is right for your business.

You may have noticed that when you open a new mail message, and click on “To” for names, you don’t see all the new folders you created in the Address List. This tip shows you how easy it is to add more folders to the Address List. Once you do this, you can click on the pull down list under Address Book and find addresses in other folders. This works in both Outlook 2003 and 2007.

In Outlook, click on the Contacts. Right-click the folder you want to save to the address list. Choose “properties” and the tab “Outlook Address Book.” Check the box next to “Show this folder as an email address book,” click “OK” to save. Open a new email message and click the “To.” Look in the pull-down list for the new address book.

To use the feature open a PDF:
1. Click on View>Activate Read Out Loud.
2. Click on View>Read Out Loud>Read This Page Only or Read to End of Document.

The Read feature will remain activated until you close Acrobat. There a number of keystroke combinations which will also control the Read Out Loud feature. Adobe provides additional information and instructions to change the default settings for Read Out Loud.

The voice is not stimulating, and the listening comprehension process requires some extra level of concentration. Even so, listening to a PDF document while driving is far superior to trying to read one!

Don’t forget: Windows also has a “narrator” function that will read out loud to you. For information on turning it on and using it in Windows XP, go here and for Vista go here.

To use the feature open a PDF:

1. Click on View > Activate Read Out Loud.

2. Click on View > Read Out Loud > Read This Page Only or Read To End of Document.

The Read feature will remain activated until you close Acrobat. If you have voices installed (SAPI 4 or SAPI 5) you can choose your voice. If not, the voice will be the rather mundane Microsoft voice.

The following keystrokes will also control the Read Out Loud feature.

Activate Read Out Loud Shift + Control + Y

Read This Page Only Shift + Control + V

Read to End of Document Shift + Control + B

Pause Shift + Control + C

Resume Shift + Control + C

Stop Shift + Control + E

This Adobe link http://tinyurl.com/lg7v2z provides additional information and instructions to change the default settings for Read Out Loud.

The voice is not stimulating, and the listening comprehension process requires some extra level of concentration. Even so, listening to a PDF document while driving is far superior to trying to read one!

There are a couple of ways to turn off the extra space permanently. One is to edit the Normal.dot template. About.com has easy step-by-step instructions to do this. I’ve tried it and it works.

Or, you can go to the “source” – Microsoft – which has a different solution. Roll back your Word version to 2003. Yes, to fix the line spacing and paragraph spacing in Word 2007 so that it is the same as in earlier versions of Word, you have to change the Style Set option. Here’s how:

1. Click the Home tab.
2. Click Change Styles in the Styles group, point to Style Set, and then click the style set that you want to use.To change the default formatting of your document, such as the line spacing and paragraph spacing, to the default formatting that is used in earlier versions of Word, click Word 2003.
3. To set the style set as the default style set in Word 2007, click Change Styles in the Styles group, and then click Set as Default.
4. Sigh with relief.

You can now listen to a free MP3 of this program, and follow along with the program PowerPoint.

While frauds targeting lawyers have not been widely reported in the US, they are clearly happening and US lawyers need to be on the lookout. Fraud is a real and growing problem for Ontario law firms and lawyers. Prior to the May 24 holiday weekend, we saw an apparent organized fraud that targeted 19 different lawyers for a total amount of $5.4 million. We continue to get almost daily calls from lawyers that are finding themselves in the middle of handling a matter that is clearly, or appears to be, a fraud. And all too frequently we see situations where fraudsters successfully “trick” lawyers and law firm staff, in practices large and small, into helping make a fraud happen. These claims have been costly for LAWPRO.

How can you protect yourself and your firm from being a victim? This webinar will help you become familiar with the common fraud schemes and scenarios, recognize the “red flags” of a fraudulent deal, and show you the steps you can take to lessen the likelihood you will be a victim of fraud.

I moderated the program, and two of my fellow LAWPRO employees were the speakers: Rosanne Manson, Claims Counsel, and Lisa Weinstein, Director, National Underwriting Policy, TitlePLUS.

The topics covered in the webinar include the following:

• Why fraud is a concern
• Current fraud trends and claims numbers
• The common fraud schemes and scenarios
• The types of bad cheque fraud
• Commercial loan matters
• Collection matters
• The different types of real estate fraud
• Identity theft
• Power of attorney fraud
• Value fraud
• The role of title insurance
• Red flags for a problem client or transaction
• How to protect yourself and your clients
• Internal fraud: when trusted staff go bad
• What to do if you think you are about to be victimized

Listen to the MP3 of the program and follow along with the program PowerPoint.

Please also download and share with your staff LAWPRO’s new Fraud Fact Sheet for a more complete list of the specific red flags to look out for on the various types of fraudulent matters.

There are even more resources on fraud prevention on practicePRO’s fraud page (www.practicepro.ca/fraud).

Cross-posted on SLAW

Read the Law Practice Today “Suddenly solo” issue here.

Law Practice Today is the ABA LPM Section’s online publication. Anyone can subscribe to it (i.e. you don’t have to be an ABA member to get it). Subscribe to LPT here.
Each issue has at least a dozen articles and it goes to almost 30,000 people monthly. Hundreds of articles from past issues are available in the online archives.

Cross-posted on SLAW (www.slaw.ca)

Trackle Your Life
Trackle is a new event-tracking site that alerts you via e-mail of the activities and events that are important in your life. You can set up hundreds of alerts: crime in your neighborhood, your name on the Internet, change in airfares, change in neighborhood home values, news about your clients or competitors, new book releases, and much more. Google Alerts are also great, but Trackle does more to help you track both your personal and professional lives.

Personal Portable Scanners
Portable scanners have come a long way since the Visioneer Strobe and HP Capshare hit the market almost a decade ago. Today’s portable scanners are smarter, cheaper, and easier to use. This class of scanner weighs under a pound, and can read business cards, understands what to do with credit card receipts, and helps organize those random documents that otherwise clutter your desk or get lost somewhere in your office. Models from NeatReceipts, IRIScan, and ScanSnap start around $150.

Be Sure You Take a Vacation
Psychologists agree vacations are a way to take a break from a busy, stressful schedule. Be sure to take annual holidays, plan ahead, and do not schedule a court appearance for days immediately following your return. Leave someone competent in charge of your files. Don’t over-plan your vacation. Scheduling too many things can be counterproductive to a relaxing vacation. Avoid rushing to do anything, and leave time to be spontaneous. And just make time to do nothing. If you feel you must bring along work, laptop or cell phone, limit the amount of time you spend using them. Otherwise, you are cheating yourself and your family or friends out of a meaningful, refreshing experience.

The Two-Minute Rule of Time Management
If you pick up a file, document, letter, or phone message, and can get it done in two minutes or less, do it immediately! If it will take longer than two minutes, quickly assign it a high, medium, or low priority, then add it to your “to do” list. Now get it off your desk and out of your mind until it comes up on your “to do” list again. Try this for several days, and see if it helps you get your work done!

Desktop Check Deposits
Never make another trip to the bank to deposit client checks! Some banks are offering a new check scanning service for small businesses to deposit checks directly from your desktop–no trips to the bank needed. Think of the time you’ll save each week!

Use Dual Monitors
With all we do today using the computers, it is more important than ever to have the screen space to do it: Rather than view documents and websites with one screen, add a second monitor to your desktop to be able to see more of your work in progress at one time. Most newer computers already support dual monitors; if not a new video card in the computer is just a few dollars more. (This tip received the biggest response at my live presentation.)

Keep Your Calendar Open
Keep your MS Outlook calendar open while using other parts of this valuable tool. At the bottom of the main screen right click the calendar icon and select “Open in New Window”. (Another good reason to have dual monitors!)

Travel Intelligence for Busy Lawyers
My favorite sites for making travel easier, more fun and productive are the following. Best hotels for wifi connections: HotelChatter; best city information and hotel reviews: TripAdvisor; best restaurant recommendations: Chowhound; cheapest brand-name car rentals (and one of the funniest names: RentalCarMomma; best seats on an airplane: SeatGuru; lowest fare finder: Kayak.